Three Month Review: Discussion

Volume of "smacking", "minor acts of physical discipline" and other assault events

• The first three months following enactment of the Amendment have identified a small increase in Police activity in attending and/or investigating child assaults matching the original search criteria.⁵
• Police attended a total of 111 child assault events (matching the original search criteria),⁶ 15 of which involved "smacking" and "minor acts of physical discipline".
• This represents a minor increase in the figures for the previous three month period prior to the enactment (17 March to 22 June 2007), where Police attended 95 child assault events (matching the original search criteria), 13 of which involved "smacking" and "minor acts of physical discipline". This information is provided in Table 1.
• As with the three month period prior to the Amendment, there were no prosecutions for "smacking" and "minor acts of physical discipline" against children during the review period.⁷

• Whilst the figures show a minor increase in Police activity in terms of attending and/or investigating child assaults, it should be noted however that increases between the two periods can also be driven by:

1. Seasonal variation, or
2. Random variation from year to year, or
3. Changes in reporting driven by other factors (such as the effect of media coverage of child murders, children self-reporting because of awareness of the Amendment, social marketing campaigns such as the Campaign for Action on Family Violence, or changes in Police recording practice).⁸

Nature of "smacking" and "minor acts of physical discipline" events following changes to the law

• As previously advised, the Amendment explicitly outlaws the use of parental force for the purposes of correction or punishment. Parliament has however, expressly affirmed that for minor cases of child assault, Police have discretion not to prosecute where the offence is considered to be so "inconsequential" that there is no public interest in a prosecution. This affirms in law the standard Police practice under the existing prosecuting guidelines.
• Although there is no statutory definition of “inconsequential” the Commissioner's Circular states that, “the use of objects/weapons to smack a child, strikes around the head area or kicking would not be inconsequential assaults. While all mitigating and aggravating circumstances would need to be considered, such assaults will generally require a prosecution in the public interest”.⁹
• All of the 15 child assault events involving "smacking" or "minor acts of physical discipline" were determined to be "inconsequential" by either the attending and/or investigating Police Officer.

Practice issues: case management - notifications, referrals and resolution outcomes

Notifications to Child, Youth and Family and referrals to other agencies

• Force used on children that is not permissible under the Amendment, is covered by the Police Family Violence Policy.¹⁰ The Application of the Family Violence Policy (1996/2), as outlined in the Commissioner's Circular, states that, “it is considered good practice that assault investigations involving children be referred to Child Abuse Investigators, and investigated in conjunction with Child, Youth and Family”.¹¹
• The Commissioner's Circular also states that “in cases where the force used is found to be minor, trivial or inconsequential, it will be appropriate to record the event on a POL 400 and forward the file to the Family Violence Co-ordinator”.¹²
• Of the 15 child assault events involving "smacking" and "minor acts of physical discipline",¹³ two were referred to Police Family Violence Co-ordinators, four were referred to Child, Youth and Family, three were referred to inter-agency Case Management meetings (Family Violence Inter-Agency Response System or FVIARS) for “advice only”, one was referred to Family Works for family support, and seven events did not have a notification status specified on the electronic Police file.¹⁴ This information is provided in Table 2.

Note: one child assault event was referred to more than one agency.

• Case management processes of referring or notifying government agencies of child assault events must be cognisant of the intent and purpose of the Amendment. During the second reading of the Crimes (substituted section 59) Amendment Bill, it was made clear that "Parliament never intended that all parents who ever lightly or occasionally hit their children should be subject automatically to investigation and police prosecution".¹⁵
• Police are looking into the referral practice for child assault events of this nature, and will continue to monitor this area over the next six to 12 months. This is to ensure that Police are able to proactively manage any practice issues that may arise.

⁵ See footnote 4 (previous).

⁶ See footnote 4 (previous).

⁷ One person has been prosecuted and convicted for assaulting a child manually on 21 November 2007, following the implementation of the Amendment. The details of this prosecution have not been included in the analysis of the review as: parts of the case were suppressed by the Masterton District Court, the prosecution fell outside the review period, and the nature of the child assault does not fall into the category of "smacking" or "minor acts of physical violence".

⁸ Police Organisational Performance Group.

⁹ Police Commissioner‘s Circular: 2007/03 - Crimes (substituted section 59) Amendment Act 2007, p4.

¹⁰ Police Commissioner‘s Circular: 2007/03 - Crimes (substituted section 59) Amendment Act 2007, p4.

¹¹ Police Commissioner‘s Circular:2007/03 - Crimes (substituted section 59) Amendment Act 2007, p4.

¹² Police Commissioner‘s Circular:2007/03 - Crimes (substituted section 59) Amendment Act 2007, p4.

¹³ Note that one event was referred to three agencies.

¹⁴ An absence of a notification on a Police file does not necessarily mean that no notification was made. This may be the result of a recording error. As the review covers a short period (three months) it is difficult to identify whether this is actually a practice issue. Police are looking into this and will continue to monitor the electronic recording of child assaults over the next six to 12 months.

¹⁵ Sue Bradford (16 May 2007) 639 NZPD 9284.